US accountability for post-9/11 human rights abuses

Terror Detentions and the Rule of Law: US and UK Perspectives

By Dr. Robert H. Wagstaff

December is Human Rights month and the 10th of December is Human Rights Day. What better time for President Obama to fulfill his promise of actually closing Guantanamo Bay and to initiate an investigation of violations of human rights by the US government post-9/11?

The Rule of Law is clear

The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was signed by President Reagan on 18 April 1988 and ratified as a treaty by a two-thirds vote of the US Senate on 21 October 1994. The CAT provides that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture” (Art 2, § 2). And CAT Article 12 requires signatories United States and United Kingdom to “ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” Article VI of the US Constitution provides that such treaties “shall be the supreme law of the land.”

Torture can never be justified as “a lesser evil”

Charles Fried, Harvard law professor and Solicitor General under President Reagan, agrees with his philosopher son Gregory Fried, that torture can never be justified and that it is never a “lesser evil.” The Frieds, co-authors of Because it is Wrong: Torture, Privacy and Presidential Power in the Age of Terror, assert that “the Bush administration broke the law in ordering torture, mocked the Constitution in its interpretation of executive authority, and outraged common decency.” They correctly maintain that “if we do not condemn, prosecute, punish the torturers and those who ordered them to torture, we become accomplices after the fact.” Gregory Fried argues for criminal prosecution now, and Charles Fried believes this is an option to consider but insists at a minimum “there should be an accounting, exposure and repudiation.” Instead, many US courts are shielding the perpetrators of abuse and torture with immunity, invoking the “state secrets” doctrine. The United Kingdom for its part is committed to conducting a public investigation as to what has occurred, and torture victim litigation seeking redress has been successful.

Detainees in orange jumpsuits sit in a holding area under the watchful eyes of Military Police at Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during in-processing to the temporary detention facility on Jan. 11, 2002. The detainees will be given a basic physical exam by a doctor, to include a chest x-ray and blood samples drawn to assess their health. DoD photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy. Public Domain via Wikimedia Commons.

The Constitution Project’s Task Force on Detainee Treatment

On 16 April 2013, a 577-page report on treatment of post-9/11 detainees was published by the nonpartisan independent organization, The Constitution Project. The 11-member bipartisan Task Force was co-chaired by two former congressmen, Republican Asa Hutchinson and Democrat James Jones. The report concludes that “it is indisputable that the United States engaged in the practice of torture” as official policy emanated from the highest levels of government, that is, President Bush, Vice President Cheney, Attorney General John Ashcroft, Secretary of Defense Donald Rumsfeld, and National Security Administration Advisor Condoleezza Rice. The report finds as a matter of fact that the interrogation methods violated not only international legal obligations, but also that there is “no firm or persuasive evidence” that torture produced any information that could not have been otherwise obtained. This torture was unjustified and has “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to US military personnel taken captive.” The Task Force notes that never in the nation’s history has there been “the kind of considered and detailed discussions that occurred after September 11, directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.”

Specific written findings of the Task Force

US forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved “cruel, inhuman, or degrading” treatment. These actions violated US laws and international treaties. Such conduct was directly counter to the values of the Constitution and our nation.

The nation’s most senior officials, through some of their actions and failures to act in the months and years immediately following the September 11 attacks, bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques used by some US personnel on detainees in several theaters.

There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by US forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.

Lawyers in the Justice Department’s Office of Legal Counsel (OLC) repeatedly gave erroneous legal sanction to certain activities that amounted to torture and cruel, inhuman or degrading treatment in violation of US and international law, and in doing so did not properly serve their clients: the president and the American people.

The United States has violated its international legal obligations in its practice of enforced disappearances and arbitrary detention of terror suspects in secret prisons abroad.

US officials involved with detention in the black sites committed acts of torture and cruel, inhuman or degrading treatment.

It is important for the United States to acknowledge its violations of the Rule of Law

These findings stand in stark contrast to the hollow protestations of those who claim that “torture works” and the inaction of the current administration. But most, if not all, of the foregoing has long been known. President Obama should have authorized the Constitution Project’s Report on Detainee Treatment and it should be carrying the presidential imprimatur. Task Force members believe that having as thorough as possible an understanding of what occurred during this period of threat—and a willingness to acknowledge any shortcomings—strengthens the nation, and equips it to better cope with the next crisis and ones after that. “Moving on” without such a reckoning forfeits the ability of the United States to claim it is a country which recognizes and follows the Rule of Law. Hopefully President Obama will use his constitutional authority and do what is right: close Guantanamo and officially investigate the Bush administration’s “enhanced interrogation techniques”.

Robert H. Wagstaff practices litigation and constitutional law from his law office in Anchorage, Alaska. He successfully argued two cases before the US Supreme Court, presented over 70 appeals, and tried numerous civil and criminal cases. He recently spent ten years at Oxford University earning three post-graduate law degrees including a Doctorate. He was formerly Alaska Bar Association President, Alaska Judicial Council member, and a member of the National Board of Directors of the ACLU, New York. He is the author of Terror Detentions and the Rule of Law: US and UK Perspectives.

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